Judgement

Appeal (No. 58 of 1941), by special leave, from a decree of the High Court (May 12, 1938) which affirmed a decree of the Subordinate Judge at Agra (September 12, 1936).

The following facts are taken from the judgment of the Judicial Committee This appeal arose out of an execution application made by the appellants1 father, Hemraj, since deceased, for the execution of a money decree which he had obtained against one Danpal in the court of the Subordinate Judge of Agra, afterwards confirmed on appeal against the present respondents, the sons of Danpal, by the attachment and sale of the ancestral property in their hands. The parties were governed by the Mitakshara law. The question for determination was whether the respondents could lawfully object to the execution of the decree on the ground that, having regard to the nature of the judgment debt, the rule of the pious obligation of a son under the Hindu law to pay his fathers debt did not apply to this case; or, in other words, was the debt in respect of which the decree was obtained an avyavaharika debt ? Hemraj and Danpal, with others, formed a joint Hindu family. In 1925, a suit was instituted in the Court of the Subordinate Judge of Agra, by Hemraj on behalf of himself and another, for partition of the joint family property, against Danpal and the members of his branch of the family. Included in the suit was a promissory note for Rs.5264, dated November 21, 1924, executed in favour of Danpal by three brothers, Ram Chand, Sri Chand and Moonga Ram. That note had been executed in renewal of an earlier note, dated December 21, 1921, for Rs.4680, which itself was in renewal of a promissory note dated February 22, 1919, for Rs.4000, which had been advanced by Danpal out of family funds. The partition suit was referred to arbitration, and a decree in terms of the award was passed on June 19, 1926. Besides other items of property, the aforesaid promissory note was allotted to. Hemraj under the award, which provided that a document or decree which was allotted to one member would be his, that the member in whose name it stood would be responsible to prove its legal necessity, and that he should file it in court within seven days of the decree. It also provided that " such a document should be within time, otherwise the party in whose name the document "stands shall be responsible for the amount due together "with interest up to the date of arbitration award" (see ss. 2, 6 and 17 of the award). Danpal did not file the document within the specified time, but he filed instead, without giving any notice to Hemraj, another document executed by the three debtors on June 21, 1926. Hemraj filed his application for execution of the decree on January 9, 1928. Danpal then filed on February 6, 1928, the promissory note dated November 21; 1924, by which time it had become time-barred.

On December 3, 1928, Hemraj filed a suit in the Court of the Subordinate Judge of Agra for the amount due under the promissory note, making the executants of the note, defendants I to 3, and Danpal, defendant No. 4. The suit was dismissed as against defendants 1 to 3 as barred by time, but it was decreed against Danpal. It was admitted in the suit that the document dated June 21 was a forgery. The proceedings showed that Danpal allowed the promissory note to become barred by acting fraudulently towards Hemraj. In the course of the judgment the Subordinate Judge remarked " Danpal " defendant has all along been acting dishonestly towards the "plaintiff, and he cannot be allowed to take advantage of "his cleverness and fraud." The appeal against that decree preferred by Danpal, during the course of which he died, was dismissed by the High Court. The learned judges observed " We consider that the duty was cast on him (Danpal) of making " over to the plaintiff the documents in regard to this particular "debt due from defendants 1 to 3, and we consider that he has "not proved that he carried out that duty."

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